This invention relates to the reduction of frivolous professional liability claims. More particularly, this invention relates to the provision of insurance to pay the legal costs of countersuits for improper prosecution of frivolous professional liability claims, including publicizing the identities of holders of such insurance as a deterrent.
As society has become more litigious, professionals (including physicians, attorneys, architects and others) have found themselves defending an increasing number of professional liability claims brought by patients or clients unhappy with the quality of the professional services rendered, or with the results of those services. In some cases, charges of professional misconduct are warranted. However, in many more cases, the charges are unwarranted; despite competent services rendered at or above the appropriate level of care, concern and attention, and without fault on the part of the professional, the desired result may not be achieved in all cases. Nevertheless, to avoid the disruption of a protracted legal action, and to control the risk of uncertain legal costs and expenses associated with unpredictable jury outcomes, such frivolous cases are frequently settled by the accused professionals (or their professional liability carriers) for their nuisance value.
A frivolous charge of professional misconduct may be brought on behalf of an unhappy patient or client simply because there is no adequate disincentive not to do so. Although it may be possible, if the frivolous nature of the complaint can be proven, to pursue a “countersuit” for improper prosecution against the proponents of frivolous claims—e.g., against the patient/client, his or her attorney, or any expert witness on behalf of the patient/client—such countersuits frequently are not instituted or pursued because of the commitment in time, and particularly in legal fees, that is involved. By “countersuit” is meant a separate legal action brought, as countersuit plaintiff, by the accused professional who was defendant in the original lawsuit, against, as countersuit defendant, the plaintiff in the original lawsuit or another proponent of the original lawsuit, including the original plaintiff's attorney or expert witness; “countersuit” could also include a counterclaim in the original lawsuit. “Improper prosecution” is meant to include any cause of action under one or more of the following legal theories: malicious prosecution, abuse of process, intentional infliction of emotional distress, defamation, prima facie tort, barratry, breach of contract, or any other legal theory that may be appropriate.
Although these problems affect many different professional fields as discussed above, the problem is particularly acute in the case of physicians. Therefore, unless otherwise noted, the remainder of this specification will be addressed to medical malpractice claims and medical malpractice insurance. It should be understood, however, that the discussion applies equally well to other types of professional liability claims and insurance.
Even though medical malpractice claims usually are covered by insurance, they have many negative implications. First, one's competence is challenged and one's reputation is damaged, threatening one's future livelihood. Second, the stress of practicing medicine is increased. Third, the physician-patient relationship is damaged. Fourth, physicians are encouraged to practice cost-inefficient defensive medicine. Fifth, the physician is required to prepare for the lawsuit, spending time away from the office that does not generate income. Sixth, the premiums for malpractice liability insurance may increase, possibly even after a successful defense. Seventh, the physician is placed in a vulnerable and uncomfortable position as a witness. Eighth, the physician may be pitted against another physician (a) in trying to allocate blame if more than one physician was involved, or (b) where another physician appears as an expert witness on behalf of the plaintiff. Ninth, stress develops at home between the physician and his or her spouse and family. Tenth, the joy is taken out of practicing medicine. Eleventh, a judgment over the maximum coverage limits of a physician's malpractice insurance policy can bankrupt the physician.
Commonly-assigned U.S. Pat. No. 6,272,471, and commonly-assigned, U.S. patent application Ser. No. 09/420,768, filed Oct. 18, 1999, now U.S. Pat. No. 6,615,181, which are hereby incorporated by reference in their entireties, describe a deterrent to frivolous professional liability claims in the form of insurance, purchased by a professional, that pays the cost of a countersuit against a proponent (e.g., plaintiff, plaintiff's attorney, or plaintiff's expert witness) of a frivolous professional liability claim. As described in the aforementioned patent and patent application, a policy of such insurance may be issued to any physician who is deemed an acceptable risk for this type of coverage. The fact that that physician is covered by the insurance may be publicized as a deterrent to potential plaintiffs or their proponents, who may be deterred if they know that they may become countersuit defendants if their frivolous claims are unsuccessful. If the covered physician is sued for medical malpractice, and prevails, a determination is then made as to whether or not the plaintiff's claim was frivolous. If the claim is deemed to have been frivolous, a countersuit is authorized and paid for by the insurer.
Under a plan of insurance as just described, the determination of whether or not the original malpractice claim was frivolous was made by an attorney engaged by the insurer for that purpose. An initial determination might have been made by an automated system, evaluating certain objective criteria, but even then an attorney normally was engaged to make a final determination. Such a process is inherently subjective. As a result, not all countersuits authorized and funded under such a plan of insurance would necessarily be successful—i.e., not all such countersuits would necessarily result in a judgment for the countersuit plaintiff (i.e., the physician) against the countersuit defendant (i.e., a proponent of the plaintiff's position in the original medical malpractice action). Similarly, not all victims of frivolous malpractice claims would receive authorization to pursue a countersuit.
For these reasons it would be desirable to be able to provide an improved plan of professional liability countersuit insurance according to which the determination of frivolousness could be made with greater certainty.